No. 4-869 / 04-0481Court of Appeals of Iowa.
Filed February 24, 2005
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
Shelly Shaneyfelt appeals from her sentence of imprisonment.CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED FORRESENTENCING.
Kent A. Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass, Assistant Attorney General, William E. Evans, County Attorney, Jerald Feuerback, Assistant County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
HECHT, J.
Shelly Shaneyfelt appeals from her sentence of imprisonment. We affirm the conviction, vacate the sentence, and remand for resentencing.
I. Background Facts and Proceedings.
On August 21, 2003, Shelly Shaneyfelt was charged with one count of Child Endangerment Resulting in Serious Injury, and one count of Neglect or Abandonment of a Dependent Person. These charges stemmed from an incident in March of 2003 at Shaneyfelt’s place of business, where she worked as a licensed day care provider. Shaneyfelt agreed to plead guilty to the neglect charge in exchange for the State’s dismissal of the child endangerment charge. No concessions were made as to the sentence the State would request.
A guilty plea was entered and accepted by the district court on February 17, 2004. Shaneyfelt supplied a factual basis for the plea by admitting she was the person in custody of the injured three and one-half month-old child, and stating “[o]n that day I recklessly exposed or abandoned [the child] to a danger or hazard against which he could not reasonably be expected to protect himself.” Shaneyfelt conceded she had “willfully disregarded” the child’s safety by leaving him unattended for several minutes with a four-year-old child who was also in her care. The inference reasonably drawn from Shaneyfelt’s statements made during the plea proceeding is that the older child allegedly inflicted the injury to the infant while Shaneyfelt was not in attendance.
The matter proceeded to sentencing on March 25, 2004, where the State conceded the factual basis offered by Shaneyfelt technically covered all the elements necessary to convict her of neglect of a dependent person. The prosecutor noted, however, that the extent of the injuries suffered by the infant was such that it made it improbable a small child could have been responsible. Although the Presentence Investigation (PSI) recommended probation, the State requested and the court imposed an indeterminate maximum term of ten years’ imprisonment.
In arriving at this sentence, the district court noted it had reviewed the PSI report and the accompanying medical evidence describing the child’s injury, and concluded “[t]here is certainly strong medical evidence that has been presented . . . to indicate that these injuries the child had are inconsistent with the defendant’s version of what happened that day.” Further, the district court noted the PSI report indicated Shaneyfelt “voluntarily took a polygraph examination that she failed,” suggesting “that she’s not telling us the entire truth in the things that she admits.” In denying probation, against the PSI recommendation, the district court noted Shaneyfelt’s lack of prior criminal record, but concluded “[g]ross neglect of children in your care when you are a licensed child care provider is one of those offenses that . . . strongly mitigates against probation for the individual.” In sentencing Shaneyfelt to the maximum prison term allowable, the district court observed that gross neglect of small children should not be tolerated, especially when done at the hands of a licensed care provider.
Shaneyfelt now contends on appeal her sentencing proceeding was flawed because the district court (1) failed to exercise its sentencing discretion by employing a predetermined sentencing policy, and (2) considered impermissible sentencing factors, namely the medical and polygraph evidence in the PSI.
II. Scope and Standard of Review.
We review sentencing challenges for errors at law. Iowa R. App. P. 6.4; State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003). “A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as trial court consideration of impermissible factors.” Liddell, 672 N.W.2d at 815.
III. Discussion.
A. Predetermined Sentencing Policy.
Shaneyfelt claims the district court failed to exercise its sentencing discretion in employing a fixed sentencing policy to deny probation to licensed child care providers guilty of neglect of a dependent person. Shaneyfelt maintains the district court focused on a single factor, the fact that she was a licensed child care provider, to the exclusion of all others, including her age, her community involvement, and her clean criminal history which would have justified probation.
Prior to pronouncing sentence the district court “should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant’s age, character and propensities and chances of his reform.” State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979) (quoting State v. Cupples, 260 Iowa 1192, 1197, 152 N.W.2d 277, 280 (1967)). “The court is not permitted to arbitrarily establish a fixed policy to govern every case, as that is the exact antithesis of discretion.” Id. (quotin State v. Jackson, 204 N.W.2d 915, 916 (Iowa 1973)). Undue reliance on a single sentencing factor is strong evidence of a fixed policy. Id.
Shaneyfelt makes much of the district court’s statement that “[g]ross neglect of children in your care when you are a licensed child care provider is one of those offenses that . . . strongly mitigates against probation for the individual.” According to Shaneyfelt, this statement confirms that the district court focused only on her status as a licensed child care provider, and predetermined probation was not a viable sentence. However, the district court prefaced its reference to Shaneyfelt’s status as a licensed child care provider with the representation that it had “reviewed the material in this case thoroughly,” including the victim impact statements from the infant’s parents, the statements made by Shaneyfelt and her attorney, and the information in the PSI report. We conclude a fair reading of the sentencing record reveals the district court arrived at its sentencing decision after considering the available sentencing options in light of (1) Shaneyfelt’s suitability for rehabilitation, (2) the probable deterrent effect, (3) the message the sentence would send to the community, (4) the nature of the offense and the harm to the victim, and (5) the mitigating factors urged by Shaneyfelt. Thus, we reject Shaneyfelt’s claim that the sentencing court placed undue reliance on a single factor, and we affirm on this issue.
B. Impermissible Factors, Unproven Charge.
Shaneyfelt contends the harshness of her sentence is the direct result of the district court’s reliance on unproven facts relevant to the dismissed count of Child Endangerment Resulting in Serious Injury. Specifically, Shaneyfelt contends the district court committed reversible error in relying on the medical evidence included in the PSI report and the statements of the prosecuting attorney and the infant’s parents, which at least implied Shaneyfelt was the person who actually inflicted the injuries. Shaneyfelt contends the district court concluded from these unproven statements and allegations that Shaneyfelt was guilty of the dismissed charge, and improperly based her sentence for neglect of a dependent person on such impermissible factors.
The district court may consider evidence tending to establish an unprosecuted offense in imposing sentence only where (1) the defendant admits to the offense, or (2) facts adduced at sentencing prove the defendant committed the offense. State v. Delaney, 526 N.W.2d 170, 179 (Iowa Ct.App. 1994). Iowa Code section 901.3(5) (2003) authorizes a PSI report to contain information detailing the “harm to the victim, the victim’s immediate family, and the community.” That same section authorizes the PSI to include victim impact statements. Id.
Section 901.5 authorizes the sentencing judge to receive and review the PSI and victim impact statements before arriving at a sentence that will “provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community . . .” As cited above, the nature of the offense is also a factor to be weighed by the sentencing judge Hildebrand, 280 N.W.2d at 396.
It is therefore abundantly clear that the district court is permitted to consider the extent of the injury suffered by the infant in determining the appropriate sentence. Because the extent of the injuries suffered by the infant is relevant to the nature of the hazard or danger to which Shaneyfelt exposed a dependent person in her custody, and to the nature and attending circumstances of the offense, we conclude the sentencing court’s consideration of the medical evidence was proper. The district court was not permitted, however, to draw the conclusion from the medical evidence and other information in the sentencing record that Shaneyfelt actually inflicted the injury. See State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (sentencing court forbidden to rely on portions of the minutes not necessary to establish the factual basis for a plea). Section 726.3 does not make the infliction of injury an element of the crime to which she pled guilty, and neither Shaneyfelt nor her attorney stipulated to facts beyond the factual basis provided for her plea.
Shaneyfelt contends the district court did in fact conclude she was responsible for inflicting the injuries to the infant based on its statement “[t]here is certainly strong medical evidence that has been presented . . . to indicate that these injuries the child had are inconsistent with the defendant’s version of what happened that day.” A rational inference could be drawn from the inconsistency noted by the district court that it did in fact suspect Shaneyfelt may have inflicted the infant’s injuries. However, the district court did not explicitly state that conclusion and we will not attribute such an inference to the court on this record. We acknowledge the district court’s clearly expressed doubt that Shaneyfelt was truthful in her representations of the facts of the incident.[1]
Assessments of credibility are important in selecting a sentence that “will provide maximum opportunity for the rehabilitation of the defendant.” Iowa Code § 901.5. After thorough review of the record of the sentencing hearing, we conclude any perceived inconsistency between the medical evidence in the sentencing record and Shaneyfelt’s version of the circumstances surrounding the infant’s injury were relevant to the defendant’s credibility and propensity for rehabilitation. See State v. Bragg, 388 N.W.2d 187, 192 (Iowa Ct.App. 1986) (“It is not an abuse of the court’s discretion to consider defendant’s truth and veracity in determining the defendant’s character and propensities and chances for rehabilitation.”). We do not extrapolate from the court’s comments about Shaneyfelt’s truthfulness a conclusion that Shaneyfelt herself was guilty of inflicting the injury on the child. We therefore affirm on this issue.
C. Impermissible Factors; Polygraph Evidence.
Shaneyfelt contends, lastly, that the sentencing procedure was flawed because the district court relied on a PSI report assertion that Shaneyfelt voluntarily participated in and failed an unstipulated polygraph examination. This evidence was used by the district court to assess Shaneyfelt’s credibility and her propensity for rehabilitation, factors we have already found permissible in sentencing. Bragg, 388 N.W.2d at 192.
However, the reliability of the polygraph as an indicator of credibility is not without its detractors, and its use in sentencing is troubling.[2] Iowa has long held that evidence of an unstipulated polygraph examination is not admissible at trial. State v. Countryman, 573 N.W.2d 265, 266
(Iowa 1998); State v. McNamara, 252 Iowa 19, 29, 104 N.W.2d 568, 574 (1960). “Inadmissibility in the absence of a stipulation is grounded on the fact that polygraph tests are not established or shown to be reliable.” Countryman, 573 N.W.2d at 266.
We find it particularly problematic that the district court relied on a failed polygraph examination as a factor to assess Shaneyfelt’s credibility and justify the sentence. The record contains scant information about the polygraph administered in this case. The only record reference to the examination appears in the PSI report which does not indicate (1) the qualifications of the examiner, (2) the technique employed by the examiner, or (3) evidence tending to establish the reliability of the technique employed by the examiner. The PSI report merely asserts that Shaneyfelt voluntarily took and failed a polygraph examination.
This is a matter of first impression in Iowa. We find it significant that no jurisdiction, to our knowledge, has authorized the use of failed polygraph examinations as an aggravating factor in sentencing. Although some jurisdictions allow a defendant to forward unstipulated, favorable polygraph evidence as a mitigating factor in sentencing, see Height v.State, 604 S.E.2d 796, 799 (Ga. 2004) (even though unstipulated polygraphs are not admissible, defendant is permitted to forward favorable, unstipulated polygraph results as a mitigating factor in sentencing), many, noting the polygraph’s unreliability, refuse to allow evidence of unstipulated polygraph examinations to play any role in sentencing. See, e.g., People v. Szabo, 447 N.E.2d 193, 210 (Ill. 1983) (favorable polygraph evidence could not be considered by the jury in the penalty phase of capital murder trial as it is inherently unreliable); People v. Towns, 245 N.W.2d 97, 99 (Mich.Ct.App. 1976) (polygraph results concerning defendant’s guilt or innocence have no relevance to sentencing); State v. Pierce, 138 S.W.3d 820, 826 (Tenn. 2004) (polygraph examination results, testimony on such results, or testimony regarding a defendant’s willingness or refusal to submit to a polygraph examination is not admissible during either capital or non-capital sentencing hearings).
We now hold that evidence of a failed, unstipulated polygraph examination may not be considered to enhance the defendant’s sentence.[3] We reserve for another day the question of whether a sentencing court may rely upon polygraph evidence favorable to the defendant as a mitigating factor. Because we find the district court did consider Shaneyfelt’s failure of a polygraph examination in determining Shaneyfelt was not credible, we vacate the sentence and remand for sentencing without any consideration of the polygraph evidence. See Gonzalez, 582 N.W.2d at 517 (“We cannot speculate about the weight a sentencing court assigned to an improper consideration and the defendant’s sentences must be vacated and the case remanded for resentencing”).
The costs for this appeal shall be taxed to the State.
CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED FORRESENTENCING.